(concurring). The Legislature in clear and indubitable terms admitting of no doubt of the purpose has decreed, as a prime and compelling measure of social policy, that a child under the age of 16 shall be deemed incapable of committing a crime, any and all offenses entailing criminal consequences under the common law or the statute law of this State when perpetrated by an adult, irrespective of the gravity of the' misconduct, whether a capital or other heinous offense or any of the lesser evil deeds comprised within the category of crime, but rather that such misconduct shall be treated as “juvenile delinquency” when done by a child under 16 years subjecting the offender to protective custody, guidance and correctional treatment; and I, too, entertain the view that such an ordinance is within the legislative competency if it is in fact that and not in reality a punitive and criminal measure under a new and euphemistic label' and a procedure that disregards the 'constitutional safe*47guards, against arbitrary action ' in restraint of individual liberty, more especially the presentment process and the right of trial by jury.
The question is basically one of constitutional power and statutory construction, to be considered in the context of criminal responsibility and its essential nature.
A child is not criminally responsible at common law for his acts or omissions-if he is of such tender years as to be incapable of distinguishing between right and wrong, and of ’understanding the nature of the particular act. At common law (1) under the age of seven years the.presumption of .incapacity is conclusive; (2) between the ages of seven and 14 years there is a rebuttable presumption of incapacity; and (3) above the age of 14 years there is a rebuttable presumption of capacity.
With some exceptions, a child is accountable for his torts in a civil action to the same degree as in an adult, for the object is to redress the personal injury by compensation, and not. to punish the child, and so his mental capacity is generally immaterial. But when it is proposed to hold a child amenable to the criminal law, the mens rea is of the essence. At common law, a crime is a combination of a criminal act and a criminal intent. The maxim is actus non\facit reum, nisi mens sit rea. A wrongful act and a wrongful intent must concur. Reg. v. Tolson, 23 Q. D. 168 (1889); Levet’s Case, Cro. Car. 538 (1793); 1 Hale P. C. 474 (1778); Commonwealth v. Mixer, 207 Mass. 141, 93 N. E. 249, 31 L. R. A., N. S., 467 (Sup. Jud. Ct. 1910); State v. Labato, 7 N. J. 137 (1951); State v. Woodward, 99 N. J. L. 49 (Sup. Ct. 1923). This was early deemed a principle of natural justice. Fowler v. Padgett, 7 T. R. 509, 514 (1798). It is a rule of justice. discernible by right reason.: Lord Abiger said, in Rex v. Allday, 8 Car. and P. 136 (1837), 173 Eng. Rep. 431: “It is a maxim older than the laws of England that, no man is guilty unless his mind is guilty.” And St. Augustine, speaking of perjury as a sin, said: “It is a sinful mind that makes a sinful tongue.” This conception of divine law has influenced -the common-law principle of *48criminal responsibility. Pollard and Maitland, History of English Law, II, 476 (1895).
Under the common law, a child is not criminally responsible “unless he is old enough, and intelligent enough, to be capable of entertaining a criminal intent; and to be capable of entertaining a criminal intent he must be capable of distinguishing between right and wrong as to the particular act.” Clark and Marshall, Crimes (5th ed. 1952), sections 38, 76; Kean, The History of the Criminal Liability of Children, 53 Law Quar. Rev. 364 (1937); Woodbridge, Physical and Mental Infancy in the Criminal Law, 87 U. of Pa. Law Rev. 426 (1939).
Children under the age of seven years are, by an arbitrary rule of the common law, conclusively presumed to be doli incapax, or incapable of entertaining a criminal intent, and no evidence at all can be received to show capacity in fact. This rule applies to both common-law and statutory offenses. Reg. v. Smith, 1 Cox C. C. 260 (1845); Marsh v. Loader, 14 C. B. (n. s.) 535 (1863); People v. Townsend, 3 Hill (N. Y.) 479 (Sup. Ct. 1842); Commonwealth v. Mead, 10 Allen 398, 92 Mass. 398 (Sup. Jud. Ct. 1865).
The presumption of such incapacity as to children between the ages of seven and 14 is not conclusive, as in cases of children under the age of seven, but rebuttable in the particular case by a showing of sufficient intelligence to distinguish between right and wrong, and to understand the nature and illegality of the particular act, or, as it is sometimes said, that he was possessed of “a mischievous discretion.” 1 Hale P. C. 26, 27 (1778); 4 Blackstone’s Comm. 23 (1800). The burden of proving capacity in this latter age group is upon the state; and capacity must be shown beyond any reasonable doubt. Reg. v. Smith, cited supra; State v. Aaron, 4 N. J. L. 231 (Sup. Ct. 1818); 4 Blackstone’s Comm. 24 (1800).
Children over the age of 14 are presumed to be doli capax, and therefore responsible, but the presumption is rebuttable, with the burden on the accused to satisfy the jury that he did not have sufficient intelligence to understand thé nature *49and consequences of his act, and to know that he was doing wrong. Clark and Marshall, Crimes (5th ed. 1952), sections 77, 78, 79.
But in historical perspective we find, in the treatment of juvenile delinquents, evidences of unreasoning justice, expiative and retributive, a vengeful justice, in utter disregard of the physical fact of criminal capacity and the promptings of a humane and understanding psychology and sound sociology in the handling of behavior-problem children. In York's Case, Fost. C. L. 70 (1791), a boy of ten years, who, after killing a little playmate, concealed the body, was convicted of murder, and executed; it was considered that the circumstances showed a consciousness of guilt, and a knowledge of right and wrong. In another English case, a child of eight was convicted of arson. Emlyn on 1 Hale P. C. 25, note. In 1819 and 1821, these sentences were pronounced by English judges: on a 14-year-old boy who stole a cotton gown, value two shillings, “Seven years transportation;” on a 13-year-old girl for stealing a hat, “To be imprisoned six months”; on two boys, 11 and 13, accused of stealing about 17 shilling, “Guilty-Death.” Thurston’s Concerning Juvenile Delinquency, 3 (1942). And in our own State a boy of 13 was convicted and hanged for a killing when he was 12. State v. Guild, 10 N. J. L. 163 (Sup. Ct. 1828).
In criminal law, “intent” signifies a state of mind “which willingly consents to the act that is done, or free will, choice, or volition in the doing of an act”; it means that the act “is voluntary, that it proceeds from a mind free to act in distinction from an act done without mental capacity to understand its nature, or under circumstances which sufficiently show that it was the result of involuntary forces and against the will.” Neither an act alone nor an intent alone can constitute a crime; therefore, an “actual intent to commit a crime may long precede its commission, but no predetermined intent is necessary for any length of time in connection with any crime, because if the will is simultaneous | ‘■A%with the act it is sufficient.” Burdick, Law of Crimes, sections 113, 115 (1946). Yet a criminal intent is not neces*50sarily an intent to do wrong; the voluntary doing of a forbidden act may be enough. At common law, the mental element required in every crime is the “voluntary exercise of the will, that faculty of the human mind which has the power of choice, and in the exercise of that power wishes, desires, determines or intends. The criminal law forbids and commands various things. If one chooses not to obey, and voluntarily carries that choice, or will, into effect by some act, the two necessary elements of crime are present, and the liability to punishment is incurred. This voluntary choice of doing what the law has declared to be crime constitutes what the law calls a bad or evil intent, otherwise called malice.” Ibid, sections 112, 129, 129(a), 129(6) and 129 (c). The Legislature may make the doing of the prohibited act criminal or penal, regardless of a corrupt or criminal purpose or even knowledge of the illegal character of the act; and in such case only the doing of the proscribed act need be shown. State v. Lobato, cited supra.
Blackstone, affirming the views of Coke and Hawkins, says: “Infancy is a defect of the understanding, and infants under the age of discretion, ought not to be punished by any criminal prosecution whatever.” 4 Blackstone’s Comm. 21 (1800); 1 Coke’s Inst. 247(h) (1629); 1 Hawk. P. C. (Curw. ed 1787), 2.
We have here an enlightened concept of justice that equates intelligence and moral responsibility with criminal culpability, not always the rule in practice. But the age of discretion varies with the individual; and there is a twilight zone in which discretion and understanding vary in degree and render objective judgment difficult and uncertain. There is no absolute age at which it may be said, to use the words of Hawkins, that the individual is no longer “under a natural disability of distinguishing between good and evil.” Burdick, Law of Crimes, section 154. But if incompetent minors are to be saved the penal-consequences of their irresponsible acts, an age of discretion and criminal accountability fairly grounded in the teachings and fruits of experience must needs be established by law, not alone to insure *51the essence of justice to the individual child, but to effect the salvation of children of tender years and unripened understanding for the ultimate good of society itself. This in its very nature involves the exercise of a reasonable legislative discretion, directed by the common experiential knowledge of mankind. Considered in relation to the individual case, a rule establishing the age of discretion is perforce arbitrary; but it is sustainable as a measure of prime social import for the care and protection of irresponsible youth rather than punishment for a knowing and understanding criminal act.
Under the Roman law, the age of puberty was the age of discretion. The earlier jurists were not in agreement concerning the legal age of puberty, some insisting it should correspond in each case to the physical fact, others that it should be fixed uniformly by law. Justinian accepted the latter view and established the age of discretion at 14 in boys and 12 in girls. Justinian's Inst. 1, 22 pr. The common law followed the Roman law and set 14 years as the age of full criminal capacity. 1 Coke's Inst. 247(b); 1 Hale P. C. 28; 4 Blackstone's Comm. 23. See Burdick, Law of Crime, sections 155, 156.
But new concepts of the criminal capacity of youth have come from the crucible of human experience, in a complex society that has undergone great structural change; and New Jersey, in common with other states, has accepted the thesis that a person under the age of 16 is to be deemed incapable of committing a crime. N. J. S. 2A:8.5-4, whose genesis is L. 1935, c. 285.
There can be no doubt that this age limitation in relation to criminal capacity is within the legislative province. It is in accord with proved and generally accepted principles of sociology---- a measure that bears a rational relation to the basic interests of society itself. History, as we have seen, is not without its instances of the criminal prosecution of children of tender years seemingly for wholly punitive purposes, irrespective of the existence of the mental qualities which are of the very essence of criminal responsibility. Under a system that made the physical fact the test of *52criminal accountability in the particular case,, miscarriages of justice were all too frequent, more especially in the complex of our present-day social organism. But above and beyond the danger of administrative mischance, failure and frustration, there is the undoubted fundamental consideration that children of such tender years, in the formative period of life, physically and psychologically are peculiarly susceptible to the sympathetic approach and the regenerative processes that make for individual uplift and social adjustment and integration. The humanitarian principle activates a modern socio-economic philosophy designed to serve the primary purpose of criminal justice as an instrument of society’s protection against crime---not as a means of vengeance and retribution, but rather the furtherance of social justice and the general welfare. Erring youth offers a fertile field for remedial effort; and the obvious aim of this statutory policy is correction according to the science of human behavior, in the fulfillment of a primary social responsibility.
Child delinquency is largely due to broken ironies and parental irresponsibility and default, and unfavorable environmental and associated factors, involving pressures that are ofttimes beyond the child’s control; and the State, as parens pairiae, undertakes by such means to provide for the wayward victims protective custody, care, discipline, and correctional treatment to fit them, psychologically and physically, for a useful social life. Once the status is established, the delinquent is treated much the same as the dependent or neglected child. Such concepts as “criminal responsibility,” “guilt,” “punishment,” and the like, have no place here; custody and control are exercised for protective and correctional purposes — — —■ protection and treatment based on understanding rather than punishment based on a technical status -of guilt. The policy is both preventive and reformative. The philosophy of the juvenile policy involved in statutes that render youths of tender years incapable of crime is child-protective and child-corrective. I would refer to Professor and Mrs. Glueck’s One Thousand Juvenile De*53linquents, pp. 12, 13, 14, 16, 76, 241. The end in view is not criminal but social justice. Wayward children are a community problem; adult behavior ofttimes has its roots in childhood experiences. The redemptive process concerns diagnostic techniques and child therapy, by psychologic, psychiatric and other modes and methods which are not of immediate interest. There are those who would question the wisdom and efficacy of sociological techniques. But, once the legislative field of action is conceded, the legislative policy is not a justiciable issue.
Yet, in this, as in all other spheres of action, the Legislature is controlled by specific constitutional limitations.
In State v. Goldberg, 124 N. J. L. 272 (Sup. Ct. 1940), affirmed 125 N. J. L. 501 (E. &. A. 1940), I had occasion to dissent from the holding that the then Juvenile Court Act, R. S. 1937, 9:18-1 et seq. constitutionally deprived the old Court of Oyer and Terminer of jurisdiction to try a 15-year-old boy on an indictment charging assault with intent to kill and the carrying of concealed weapons. The dissent was rested upon the thesis that it is beyond the power of the Legislature to term either murder or an assault with intent to kill “juvenile delinquency,” and then proceed to an adjudication of guilt without regarding the constitutional safeguards applicable to criminal prosecutions, and impose upon such adjudication the penalty prescribed for the specific criminal offense thus branded juvenile delinquency. I read the then existing statute as purporting to do that very thing.
R. S. 1937, 9:18-30 authorized, upon such adjudication, the imposition of “the penalty provided by law” * * ' * one that was established as in consonance with the criminal concept of the particular transgression against society. Eor a specific offense, termed a crime when committed by a person of the age of 16 years or more, so it was provided, the court “may” impose the same penalty prescribed by the law in the case of an adult, although “on proper cause shown,” it “may” direct that the child be placed on “probation” or committed (1) “to a public institution established for the care, custody, instruction and reform of juvenile offenders,” or (2) “to any *54other like institution commitment to which may be authorized by law,” or (3) “to the care, custody and control of the state board of children's guardians as provided by law.” This seemed to be the plain sense and significance of the legislative terms. The use of the permissive verb “may” in relation to these alternative courses of action could have no other meaning. The statute, R. S. 1937, 9:18-29, directed the Juvenile Court to “hear and determine all cases of children arising under” its provisions “without a jury,” but secured a jury trial where an adult was charged with an offense triable by that mode, upon demand made. It is requisite that there be careful drafting of a statute of this class to distinguish between a delinquency and a criminal proceeding, both in procedure and treatment after the status is determined. One Thousand Juvenile Delinquents, cited supra, pp. 12, 17, where the Massachusetts and Illinois acts are analyzed. Rut it is not necessary to pursue the inquiry as to constitutional sufficiency. I would refer to the majority opinion in the Goldberg case and to In re Mei, 122 N. J. Eq. 125 (E. & A. 1937), and In re Daniecki, 117 N. J. Eq. 527 (Ch. 1935), affirmed 119 N. J. Eq. 359 (E. & A. 1935). It suffices to say that I held to the view that the difference in nomenclature did not alter the essential character of the act thus given judicial cognizance, and the infant could not be deprived of the constitutional procedures where conviction subjected him to the same penal consequences as the conviction of an adult.
But, beginning in 1943, there came a series of amendments of B. 8. 1937, 9 :18-12, eventuating in N. J. S. 2A :4-14 and 2A :4-15, which renders the validity of this hypothesis academic. By the amendment of 1943, the Juvenile Court wras given exclusive jurisdiction over all cases of “juvenile delinquency,” defined as the commission by a child under 16 years of age of any act which when committed by a person “of the age of sixteen years or over” would constitute “a felony, high misdemeanor, misdemeanor, or other offense,” these among others. The court was given exclusive jurisdiction to *55hear and determine “all eases of persons between the ages of sixteen and eighteen who shall commit any” of the enumerated offenses, “if the complaint in such cases shall be certified by the grand jury with the approval of the prosecutor of the pleas, or by the prosecutor of the pleas, or by a judge of the court of quarter sessions or special sessions,” to the judge of the Juvenile Court, after investigation and report made by the chief probation officer of the county. It was directed that the Juvenile Court’s hearings in such cases “shall be separate from those involving juveniles under the age of sixteen years”; and the court was empowered, “at any time before final adjudication,” to “return” the complaint whence it came “if, in its judgment upon the facts disclosed at the hearings, 'the complaint should not be adjudicated” in the Juvenile Court, or thereafter for a violation of the conditions of probation, and thereupon “jurisdiction shall be resumed by the grand jury, prosecutor of the pleas, the court of quarter sessions or special sessions, as the case may be, as if said complaint had not in the first instance been certified” to the Juvenile Court. L. 1943, c. 97.
There were amendments in 1946, c. 77, and in 1948, c. 284, and then came N. J. S. 2A :4-15, in 1953, defining “juvenile delinquency” as the commission by a child under 18 years of age of any act which when committed by a person of the age of 18 years or over would constitute a felony, high misdemeanor, misdemeanor, or other offense, and providing that if it shall appear to the satisfaction of the Juvenile Court that “a case of juvenile delinquency,” as thus defined, committed by any juvenile of the age of 16 or 17 years “should not be dealt with by the court, either because of the fact that the person is an habitual offender, or has been charged with an offense of a heinous nature, under circumstances which may require the imposition of a sentence rather than the disposition permitted by this chapter for the welfare of society, then the court may refer such case to the county prosecutor,” and a juvenile of the age of 16 or 17 years “may demand a presentment and trial by jury and, in such case, when this act is made known to the court, such case” shall be *56“referred to the county prosecutor,” and thereafter “be dealt with in exactly the same manner as a criminal case.”
There is determining significance in this classification that resolves the constitutional problem I found in the earlier statute considered in State v. Goldberg, cited supra. The subjection of youthful delinquents of 16 or 17 years to a “sentence” rather than the “disposition” permissible under the act “for the welfare of society,” where the delinquent is “an habitual offender” or the offense charged is of a “heinous nature, under circumstances” requiring the “imposition of a sentence,” and the recognition of the constitutional rights of presentment and trial by jury in such cases, make manifest a legislative purpose to exonerate delinquents under 16 years of age from the essentially penal consequences of acts that would be criminal if perpetrated by persons above that age, and to subject them to society’s care, protection, and corrective custody for the individual’s social uplift and the common good.
Intent would seem to be an ingredient of juvenile delinquency also; but it is not criminal intent, penal rather than correctional in its consequences when the wrongful act occurs.
But, by the same token, there is no statutory distinction in this regard between “capital” and “noncapital” acts or offenses. A delinquent of 16 or 17 years is made criminally responsible in the given circumstances, but under the safeguard of all constitutional guaranties, rather than the object of reformative measures merely under the Juvenile Act. Delinquents under the age of 16 years are wholly incapable of crime, no matter what the nature or gravity of the act when done by one of criminal capacity, and are amenable only to protective care and custody and the rehabilitative process for the social good as well as their own interest. This by certain and unequivocal terms. There being in the contemplation of the law the absence of punitive fault, the delinquent behavior and waywardness cannot entail punitive consequences. Delinquency in its statutory connotation suggests the psychological rather than the judicial attitude *57toward the offender. Such is plainly within the competency of the State, as parens patriae.
The Legislature is the forum for those who would quarrel with the wisdom of this concept of moral and social responsibility. The constitutional doctrine of separation of powers forbids judicial superintendence of legislative policy. One of the primary functions of the judiciary is to confine the coordinate legislative and executive departments of government within their respective spheres of action, but it must be certain that in this process of containment it maintains the balance against excesses and intrusions of its own.
Thus it is that I cannot subscribe to the view that murder is a crime sui generis that remains a crime within the purview of the Constitution, and as such is not subject to different legislative classification such as we have here, following In re Mei and State v. Goldberg, cited supra.
Even on that hypothesis, the indictment for murder is not sustainable against this 15-year-old boy unless it be shown that he entertained a criminal intent to commit robbery; and under the holding in the Goldberg case he is by the statute incapable of robbery. The criminal offense laid against him is murder in the perpetration of a robbery; and where there is criminal capacity, the homicide in such circumstances is murder in the first degree, even though not a willful, deliberate and premeditated killing. R. S. 1937, 2:138-1, 2, N. J. S. 2A .113-1, 2. The intent to commit the crime of robbery is an essential element of the statutory offense of murder in the first degree; and of this the infant defendant was incapable as a matter of law. I would refer in,this regard to the dissent in State v. Grillo, 11 N. J. 173 (1952).
In People v. Roper, 259 N. Y. 170, 181 N. E. 88 (Ct. App. 1932), the New York Court of Appeals considered a felony murder in relation to a statute providing that only a child under seven years is incapable as matter of law of committing a crime, though a child “of the age of seven years, and.under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by *58proof that he had sufficient capacity to understand,” and “a child of more than seven and less than sixteen years of age, who shall commit any act or omission which, if committed by an adnlt, would he a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency.”
Pointing out that under the statute, a child of 15 years may be guilty of murder in the first degree, Lehman, J., said:
“When guilt of a crime has been established, its penal consequences are the same for child and adult criminal. But guilt cannot be established without proof of every essential element of the crime, and, since a felonious intent is an essential element of the crime of murder, guilt of a defendant can never be established without proof of such intent. Thus, the guilt of a defendant charged with murder in the first degree may depend upon his capacity to form the felonious intent. Then the fact that a defendant is under the age of sixteen may carry legal consequences. There can be no murder without evidence of malice and felonious intent and a depraved mind. The indictment was sufficient in form when it simply accused defendant of having killed the deceased ‘wilfully, feloniously, and with malice aforethought.’ On the trial it was necessary to prove such malice and willful and felonious conduct, and this necessity was satisfied in accordance with the provision of the statute by showing that the homicide occurred while the defendant was engaged in the commission of another felony. * * * The crime of murder charged in the indictment is a single crime, whether committed by design or during the commission of an independent felony; ‘the independent felony like the deliberate and premeditated intent being established solely for the purpose of characterizing the degree of the crime so charged, the evil mind or purpose inherent in the killing.’ People v. Lytton, 257 N. Y. 310, 315, 178 N. E. 290, 292 [79 A. L. R. 503]. The defendant may have participated in the robbery; but, unless that participation was with felonious intent, he was not guilty of the felony, and, if he was not guilty of the independent felony, participation does not evince ‘the evil mind or purpose inherent in the killing.’ * * * The defendant can be convicted of murder in the first degree only upon a finding of ‘felonious intent.’ The verdict of the jury imports a finding that the defendant participated in the commission of a robbery, as defined by the statute, for the trial judge charged that without such finding the verdict must be not guilty. Upon the trial of a defendant over the age of sixteen years, a finding of participation in a robbery, as defined by the statute, would import a finding of ‘felonious intent,’ for robbery, in every degree, is a felony. Upon the trial of a child under the age of sixteen, the participation of a child in a robbery, or at least in a robbery in the second or third degrees, would not establish the guilt of a felony, *59but only of a minor offense characterized as juvenile delinquency. Hence, it is plain that the defendant’s conviction rests upon no finding of guilt of a felony, and thus no finding of felonious intent, and the judgment must be reversed. * * * Upon the new trial this defendant may be tried for murder in the first or second degrees committed through the killing of a human being with intent to effect his death. Such an action ma'y be impelled by ‘evil mind’ and felonious intent as evidenced by the criminal acts of the child, but not by acts which the Legislature has declared are not criminal when committed by a child. A person who with evil mind commits a crime may, in the interests of society, be punished, even by death for the undesigned and unforeseen result of the crime. No person, certainly no child under the age of sixteen, is subject to death or life imprisonment because of the calamitous though undesigned result of acts which are not criminal in their inception.”
Here, guilt of the murder laid to the accused child by the indictment can be predicated only of the commission of a crime of which by the statute he is incapable, and so the requisite felonious intent would be wanting. The illogie of the converse of this hypothesis would seem to be incontestable; and if it is not good logic, it is not good law, for it is to be presumed that the Legislature intended the logical consequence of the declared policy.
I concur in the reversal of the order and the remand of the cause to the Juvenile and Domestic Relations Court.